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The Ethics of Discrimination
Frederik Kaufman asks what is and is not discrimination.
The concept of discrimination plays roughly the same role in public debate as the concept of terrorism. In just the same way as disliked militants are often condemned as ‘terrorists’, so disliked policies that differentiate among people are often condemned as ‘discrimination’. Those charges have deep rhetorical power. However, both concepts remain woefully unanalyzed. In this article I want to analyze the concept of discrimination: what it is, and what it isn’t.
Differentiating among people on account of their group membership, disadvantaging some and not others, is not the problem with discrimination. We don’t discriminate against criminals by burdening them with jail. It is when disadvantages are unjustly imposed because of group membership that differentiation between groups is morally objectionable. This is what we call discrimination.
Intentionally disadvantaging innocent people merely because of their group membership is the clearest form of discrimination. (Perhaps people can also be discriminated against unintentionally, but that likely originally derives from intentionally disadvantaging members of that group.) Doing so strikes at the core of how we think people should be treated. Basic respect for persons entails regarding them as individuals with a right to equal consideration, not just judging them according to others with whom they happen to be grouped. So it might seem that disadvantaging someone for that reason is necessarily wrong.
We sometimes do intentionally disadvantage innocent people based solely on group membership, in cases where it does not seem wrong to do so. Airline pilots must retire at a certain age. You must be at least eighteen to vote. When one can get married, drink alcohol, join the military, or sign contracts, are similarly restricted. Insurance rates are established by group membership, not by individual characteristics. Of course, these are not the sort of groups commonly recognized as being victims of discrimination. But the salient point is that sometimes there are good reasons to sort and burden people merely because of their group membership. So how do we tell when group membership is a good reason to burden someone, and when it isn’t?
Take ten year olds. Not all ten year olds lack the maturity, judgment and experience to drive or vote, but the odds are that any individual among them does. It’s a matter of probabilities. Given that we can’t easily test every ten year old, restricting their rights solely on account of their age seems reasonable. So there is a plausible connection in this case between group membership and why a particular burden is imposed. By contrast, if someone’s group membership is irrelevant to why they’re being disadvantaged, that seems a bad reason. If a bus company refuses to hire black people just because they’re black, this is a bad reason because skin color is irrelevant to bus driving. Gender, race, religion, sexual orientation, and national origin, are all similarly irrelevant to bus driving, too.
Graphic © Amy Baker 2019. Please visit instagram.com/amy_louisebaker
Disadvantaging people when their group membership is irrelevant appears to explain both what discrimination is, and why it is wrong. However, this account of discrimination is still uninformative because it doesn’t address the question of what counts as an irrelevant reason. Or I could say that everybody, including discriminators, agrees that we should impose burdens for relevant reasons only. We just disagree about what counts as a relevant reason. In a racist community, for example, skin color becomes terribly relevant. So the ‘irrelevant reason’ account of discrimination is still too abstract. It doesn’t explain what is distinctively morally problematic about discrimination.
We might think that discrimination is objectionable because it disadvantages people on account of an immutable characteristic – some aspect of themselves that they cannot change. This ignores the fact that we can also discriminate against people for things they can change. Even if people could change their sexual orientation, by, say, taking a pill, it would still be wrong to discriminate against gays. Moreover, if discrimination is wrong because it disadvantages people for features they cannot change, this suggests that that feature is somehow objectionable. It gives the impression that if they could change it they should, but since they cannot, it is wrong to disadvantage them for, as it were, being stuck with something they can’t do anything about. However, it is not the case that it is wrong to discriminate against a woman because she cannot change her gender (sex-change operations aside). Whether or not she can change gender is beside the point.
Perhaps discrimination is wrong because it violates an intuitively obvious principle of justice – that we should treat likes alike. Since all humans share their humanity, all humans should be treated alike. The formal notion that ‘we should treat like cases alike’ is unassailable; but as with the ‘irrelevant reason’ account of discrimination, this idea is also uninformative, since the question of what counts as a ‘relevant difference’ resurfaces. The discriminator readily agrees that he should treat like cases alike: he just regards features such as skin color, gender, etc as differences sufficient to make the people involved not alike.
It’s not discrimination to lock up a criminal.
Clearly, thinking that a difference among people is relevant does not make it so. Even the discriminator knows that. Indeed, it would be unintelligible to disadvantage, say, black people, just because they are black; or to treat women worse than men just because they are women. Even discriminators understand that treating people disadvantageously solely because of skin color or gender etc is as incomprehensible as doing so just because of the number of letters in their names. Rather, the discriminator takes another step: he regards the trait in question as a marker for some other relevantly objectionable feature, such as incompetence, untrustworthiness, or inferior moral status. For this reason, the discriminator believes he does no wrong by imposing comparative disadvantages on people because of their group membership. In fact, he thinks he’s treating people as they deserve because of their group membership because of this negative feature that he associates with that group membership.
We tend to overlook the rationality that intentional discrimination requires and psychoanalyze instead: ‘homophobic’, ‘prejudiced’, ‘biased’, ‘bigoted’, ‘selfish’, ‘hateful’, and similar diagnostic terms come to mind. But such ad hominem critiques fail to address the discriminator or his discrimination perceptively, since he would deny he’s doing anything wrong. He thinks he acts justifiably. He thinks that he’s doing the same thing we do when we prohibit ten-year-old kids from driving or voting, or when we restrict application to the military to those under thirty, or, indeed, when we shun a bar in a high crime area of town late at night – that is, when there actually is some good reason for disadvantaging someone solely on account of group membership. We might regret that, as a practical matter, we cannot test all ten-year-olds to see who can drive safely or is mature enough to marry, vote, or sign a contract. But just as we think we’re justified in prohibiting all ten-year-olds from driving, so the discriminator thinks he is justified in disadvantaging women, black people, homosexuals, Jews, etc, since being a member of one of the groups he excludes means having some further objectionable feature or defect that justifies the treatment – even though he might concede that there will be a few individual exceptions.
An exception to the norm
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Achieving Accurate Stereo Vision
When called upon to justify (even to himself) the burdens a discriminator imposes on people because of their group membership, he must appeal to an alleged fact that, if correct, would indeed justify the disadvantageous treatment. Were this not the case, the discriminator could not even understand his own actions. That is, since the discriminator imposes disadvantages intentionally, he has to know why he is doing so. However, since the discriminator is mistaken about the facts and judgments (moral or otherwise), he harms people mistakenly, and therefore unjustifiably. They do not deserve his maltreatment. This is why discrimination is wrong.
Stereotypes are generalizations which can be more or less accurate; in fact the difference between prohibiting all ten-year-olds from driving and unethical discrimination turns on the difference between accurate and misinformed stereotypes of the salient groups. If black people really did spread dangerous diseases in the community swimming pool, that would be a good reason to exclude them; if many homosexuals really did sexually exploit children, that would be a good reason not to allow them to be teachers; if most immigrants really were rapists and drug dealers, that would be a good reason to keep them out of the country; and if women really were incapable of making good judgments, then that would be a good reason not to, for instance, let them drive.
Inaccurate but firmly embraced stereotypes or faulty judgments are not easily corrected by facts or argumentation – although in theory they should be, since the discriminator takes himself to be rational. However, since discriminators embrace defective views regarding the people against whom they discriminate, despite good reasons to the contrary, they are now subject to a second kind of moral criticism. How we form and maintain our beliefs is itself a moral issue because what we believe affects others, and because believing contrary to good evidence and arguments is beneath our dignity as rational deliberators.
Have I perhaps over-intellectualized discrimination? Maybe it’s just a groundless, free-standing hatred or dislike for people in a particular social group. But if I hate, am disgusted by, fear, or distain, I must have corresponding beliefs about the object of my emotions. I must think that the object of my hate or disgust merits my opprobrium; if I am afraid, I must believe that the object of my fear can harm me. So when discriminators are simply urged to abandon their hate, fear, etc, they no doubt find the advice question-begging: Why abandon emotions I rightfully hold?
No. The real issue for discriminators is whether the disadvantages they impose on account of group membership are warranted; and that turns on the validity of their beliefs about the target group.
But what if the disadvantage is based on statistically verifiable facts? Employers favor non-smokers because they are sick less often than smokers; low income drug addicts are more liable to be petty criminals; skin-heads are more prone to violence; the guy with the rebel flag on his pickup truck is more likely to be a racist; people who drive Priuses are more likely to be political liberals; and so on. With stereotypes which have some basis in the facts, the odds are that any individual in the group will have or lack the trait in question. Most women lack the upper body strength to be firefighters. But some do have it. Most ten-year-olds are not capable of being good drivers. But some are. If we disadvantage someone because of a statistically-correct group norm, but who nevertheless is an exception to the norm, we treat that person unfairly. That person does not deserve the burden we impose, even if others in the group do.
However, this is different from imposing burdens on individuals because of false beliefs or incorrect judgments about the group. If we disadvantage someone who is an exception in a stereotype with some basis in fact, it seems to me not discriminatory. It is unfair; and we should try to address unfairness if we can. But not all unfairness counts as discrimination. Discrimination is a particular kind of unfairness, which turns on imposing burdens because of factually misinformed stereotypes.
We can also wonder why certain stereotypes have become somewhat accurate. If prior discrimination produced a stereotype with some basis in fact – such as disadvantaging immigrants leading to greater poverty among them, leading to higher crime rates – it hardly seems fair to appeal to the stereotype as grounds for further disadvantaging members of that group.
Let’s say discrimination involves the imposition of disadvantages on the basis of misinformed stereotypes. This account can be generalized to also include cases of defective (or at least wildly improbable) theories regarding certain groups where evidence about the target group plays a limited role. This can often happen in religious objections to homosexuality, same-sex marriage, the status of women vis-à-vis men, and the like. Generally, the discriminator with misinformed stereotypes is in theory amenable to empirical data, whereas this type of religious discriminator is not. His basis for treating members of the target group disadvantageously is not based on empirical evidence. But here too the burden of proof is on the discriminator, since he has to think that the disadvantage he imposes is reasonably warranted.
Perhaps you might think the moral ideal is to judge people as individuals with specific characters and abilities, not as members of groups. But this may be psychologically unrealistic and is often impractical, so in practice we function socially with stereotypes of varying degrees of accuracy. Further, since social identity presupposes various group memberships, and because it makes no sense to imagine individuals without some sort of social identity, ignoring group membership is more than a practically unrealistic ideal, it is a fiction. We do not live in a state of nature as abstract individuals independent of social groups. So instead of trying to ignore this fact, we should acknowledge that the ethical issue is how group membership of one sort or another may legitimately be handled in dealing with individual persons.
© Prof. Frederik Kaufman 2019
Frederik Kaufman is Professor of Philosophy & Religion at Ithaca College, NY.